Interim Decision *1579 

MATTER of M/T "Dom Maaire 

In Fine •Proceedings 

LOS-10/2.141 

Retailed by Board May 2, 1966 

Where an alien -crewman, inspected and denied conditional landing privileges 

upon arrival, was subsequently reported missing from the ship by the master 

of the vessel and was zo reported on the departure manifest, liability to fine 

lies under section 254(a) (2), Immigration and Nationality Act, for failure 

to detain the crewman aboard the vessel, absent a showing by the carrier 

that an illegal landing was not made by the crewman. 

Tiv aza M/T "DONA. MARIA." which arrived at the port of Los Angeles, California, from foreign, on May 23, 1964. Alien crewman involved: 

Wing Pin So 

Bents non Fitts: Act of 1952—Section 254(a) (2) [8 U.S.C. 1284] 

This appeal is directed to an administrative penalty of $500, $1000 

mitigated to the extent of $500, which the District Director at Los 

Angeles has ordered imposed on the vessel's agents, Lilly Shipping 

Agencies, and/or its Master, Frederick W. Ridley, for failure to detain the above-named alien crewman aboard the vessel .at all times . 

despite the fact that he had not been granted conditional landing 

privileges. 

It appears from the record before us that the following material 

facts exist without substantial controversy. Immigration inspection 

was accorded the crew of this vessel immediately upon its arrival 

from foreign, ante. As a result, 46 alien crew members, including 

the one named above, were denied conditional landing privileges. 

However, on May 26, 1964, at 11:30 pan., the Master of the vessel 

reported that the above-named alien crewman was migqing from the 

ship. A search of the vessel by the ship's officers and crew failed to 

produce the missing crewman. The vessel sailed foreign at 12:30 

pm. on May 27, 1984. The manifest (Form 1-418) submitted for 

that departure reported the crewman as not on board. 

The carrier asserts that while the vessel was anchored about a mile 

offshore at El Segundo, California, this alien crewman left the ship 

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and endeavored to swim ashore. It asserts that to its knowledge he 

never landed in this country. It claims that it has no_resson to believe that he has been seen alive since he _was .found missing from 

the ship. -It argues that it is as reasonable -to assume that he 

drowned attempting to swim ashore as it Is Co' conjecture that he 

landed in the United States. It contends that no fine should be im! 

posed, on the theory that an illegal landing is essential to 'a violation 

of this section of the law and that none has been established here. 

Excerpts from records of the El Segundo, Police Department, to 

which department this crewman's escape was reported, contain:evidence indicating that the crewman in question may actually have 

succeeded in reaching the shore. But regardless of whether he did 

or not, the appellant's argument in this respect overlooks the provisions of subsection (b) of section' 254 of the Immigration and 

Nationality Act, which provide that: 

Proof that an alien crewman did not appear upon the outgoing manifest of 

the vessel * • * on which he arrived in the -United States * * * or that he 

was reported by the Master or Commanding Meer of such vessel * • • as a 

deserter, shall be prima facie egidence of a failure to detain or deport such 

alien crewman. (Emphasis supplied.) 

Here, the crewman was missing from the ship and so reported, including on the departure manifest. These factors bring into play 

subsection (b) of the statute. That being the case, under the law 

the carrier then had the burden of proceeding to show that an 

illegal landing was not made by the crewman. Absent same, the 

fine lies. 

If, as pointed out by the Service, it had the burden of producing 

the corpus delicti before it could institute fine proceedings, then the 

Congressional purpose of providing for close control -over Crewmen 

would be frustrated in many, if not most, cases. The wording of 

the statute supports the Service in this respect. If, on the other 

hand, the carrier's claim that the crewman jumped. overboard and 

unsuccessfully attempted to swim ashore is ultimately established, 

then the carrier has an appropriate remedy by way of a motion for 

reconsideration. 

The only remaining issue is whether -more mitigation than has 

already been authorized by the District Director ($500) is warranted 

in these premises and, if so, how much. In this connection, two professional guards per shift were on duty bn an around-the-clock 

basin to guard the detainees aboard this vessel, both while it was 

docked and while it was finishingits loading a mile offshore. The 

District Director has indicated in his opinion that the Master and 

the agents of this vessel did attempt diligently to detain the crew- 

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Interim Decision #1579 

man on board the vessel at all times. Said official has also indicated 

in his opinion that said parties did cooperate in an attempt to locate 

the escapee after his desertion. The record before us • adequately 

establishes continuing efforts on their part to the end that the escapee's apprehension and/Or location might ba effected. Accordingly, and in view of the unusual circumstances presented by this 

case, it is our considered opinion that $300 more mitigation is 

merited. That is, we feel that maximum mitigation permissible 

under the statute is merited in these premises. 

ORDER: It is ordered that the District Director's decision of 

February 10, 1966, be modified to provide for $300 additional mitigation, and that ac so amended the decision of said official be and 

the same is hereby affirmed.: The penality ..permitted to stand is $200.